Full Judgment Text
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PETITIONER:
STATE OF GOA & ANR,
Vs.
RESPONDENT:
HIRABHAI SOMABHAI TANDEL, NANI, DAMAN
DATE OF JUDGMENT: 05/11/1997
BENCH:
G.N. RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
THE 5TH DAY OF NOVEMBER, 1997
Present:
Hon’ble Mr. Justice G.N.Ray
Hon’ble Mr. Justice G.B.Pattanaik
Ms.A.Subhashini, Adv. for the appellants.
S.V.Deshpande, Adv. for the Respondent
O R D E R
The following Order of the Court delivered:
The validity of the order dated 15th November, 1989
passed b the Division Bench of the Bombay High Court (Panaji
Bench) Goa in Criminal Writ Petition No.27/89 is under
challenge in this appeal. On 24th July, 1975 an order of
detention under Section 3 (I) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
was passed against the step father of the respondent. It is
an admitted position that such respondent was kept on
detention for more than a year but was released before the
expiry of two years. On 20th October, 1979 a notice was
issued to the respondent for forfeiture of the property held
by the step father of the respondent under the provisions of
the Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 1976. No challenge was made against such
notification and on 19th December, 1985 the competent
authority under the said Act (hereinafter referred to as
SAFEMA) passed order under Section 7 of the SAFEMA directing
for forfeiture of the property of the respondent. No appeal
or writ petition was filed by the respondent challenging
such forfeiture. It may be stated that pursuant to the said
order of forfeiture the property was sold in auction in
August, 1989 to the Daman Administration for a sum of
Rs.2,59,256/- and possession of the said property had been
handed over the said Daman Administration. The respondent
filed that Criminal writ petition No. 27.89 before the Goa
Bench on 17th July, 1989 challenging the order of detention
of her step father. The High Court entertained such writ
petition and set aside the order of detention on the finding
that the grounds for detention had not been served on the
detenue.
Ms. A Subhashini the learned counsel appearing for the
appellant has submitted that the said writ petition should
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not have been entertained by the High Court. After the order
of forfeiture had been passed under SAFEMA validity of the
order of detention was not be scruitinised. In support of
such contention, she has referred to the nine judges’ Bench
decision of this Court made in Attorney General for India
Ors. Vs. Amratlal Prajivandas and Ors. (1994 (5) SCC 54).
The ratio of the decision had been summarised in para 56 of
the said decision and it has been clearly indicated that
56.(b): An order of detention to
which Section 12-A is applicable as
well as an order of detention to
which Section 12-A was not
applicable can serve as the
foundation, as the basis, for
applying SAFEMA to such detenu and
to his relatives and associates
provided such order of detention
does not attract any of the sub-
clauses in the proviso to Section
2(2). If such detenu did not choose
to question the said detention
(either by himself or through his
next friend) before the Court
during the period when such order
of detention was in force, -- or is
unsuccessful in his attack thereon-
he, or his relatives and associates
cannot attack or question its
validity when it is made the basis
for applying SAFEMA to him or to
his relatives or associates."
In view of such decision of this Court, the said writ
petition was not maintainable. We, therefore, set aside the
impugned order by allowing this appeal.